Breathalyzer Test – Do I Have a Right to Refuse



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There are some states that provide the ability to refuse a breathalyzer test, but others require the individual to take the test based on the specific laws of the area which could lead to charges for driving under the influence of alcohol. When the rights to refuse exists, the individual should understand what this could mean for a court case.

Refusing the Test

There are certain consequences when police believe that the driver is under the influence of alcohol when he or she refuses a breathalyzer test. In these instances, the police may determine that the individual has symptoms of intoxication. The field sobriety test is usually the other way to help assist cops in considering the situation if the driver refuses the test itself. Then, it is up to the judgment of the officer to check pupil dilation, inebriation through body movements and reaction times. Poor judgment and slow motor skills may lend to the suspicion for an arrest or DUI charges.

The Right to Refuse

There are some states that have an implied consent for breathalyzer tests. DUI charges and laws may change based on implied consent through these test and state laws. For possible additional penalties, the person behind the wheel may have no other choice but to submit to a breathalyzer and field sobriety test to determine the level of intoxication. While the right to refuse may still exist in some form, the state may immediately penalize the person if he or she refuses when the police determine this individual under suspicion. Other penalties may include assumption of guilt when facing the case in the courtroom.

Refusal and Penalties

When the state does not provide the same rights to refuse a breathalyzer as others, penalties for refusal are often the outcome. Before anything else happens, the individual usually will face a suspension of his or her driver’s license. The length of this suspension may depend on the state or the factors of the case. This first penalty is usually automatic without any trial, defending against the matter or a hearing with a judge. Because the suspension is administrative, it is not part of other penalties that the state may incur for the criminal act of DUI offenses. The penalty processes through the Department of Motor Vehicles.

After the administrative suspension, the individual will usually face a hearing or trial about the drunk driving matter. The police will attempt to use a breathalyzer device, but with refusal, the issue of refusal may demonstrate to the courtroom that the person is guilty and should receive a DUI conviction. In some states, the person may still face the administrative penalties even if not found guilty in the courtroom. Other penalties incurred may place a device in the car to drive where the person needs to breathe into the machine with a BAC lower than a certain percent. Fines and even jail time are possible.

Rights and Decisions when Pulled Over

It is important to use the right to remain silent during an arrest. The individual may have the right to stay silent during police pulling the person over, but he or she will still need to answer certain questions. Legal support is not generally available at this time, but a lawyer may explain that taking the breathalyzer test is best when the state could automatically penalize the person that refuses to do so when pulled over. The decision to takes either a breathalyzer or field sobriety test may increase evidence against the driver or decrease it if the person has not imbibed more than minimal alcohol before getting behind the wheel.

The Breath Test in Court

Many individuals will refrain from taking a breathalyzer test if possible. However, it is crucial to know if the automatic penalties will occur if doing so when pulled over. Deciding to take the test will usually result in the results upheld in a court whether they show a BAC of 0.08 or a percentage either higher or lower. It is better to take the test and then attempt to fight the matter in court when automatic penalties will harm the individual more in the short-term.

Legal Help in Refusing a Breathalyzer

When refusing to take the breathalyzer, the individual will usually need a lawyer to help with the DUI charges in court and with administrative penalties which may happen automatically. The legal professional will assist with presenting the case and refuting any unneeded or inaccurate evidence.


Provided by HG.org


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.
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